On the age of consent

Let’s start with a brief history of the age of consent law in Canada. Since 1892 the age at which a person was considered capable of consenting to sexual activity has been set at 14. In the spring of 2008, this was raised to 16, with the exemption that “sex between peers under 16 is okay, as long as neither is in a position of authority and they are 12 or older. Likewise, under a “close-in-age” provision, if a person under 16 (and 12 or older) has sex with someone less than five years older, they can be considered to have consented unless the older person is in a position of authority.” (emphasis mine) (source)

The law was changed in response to growing concern over international tourists visiting Canada to take advantage of the low age of consent. In short, Canada was becoming a child sex tourism destination. (source) In particular, take a read about Dale Eric Beckham, a 31-year old American who met a 14-year old Canadian boy on the internet, and flew to Canada to have sex with him. The boy’s parents alerted the police, who arrested Beckham. The boy testified that it was consensual, and so Beckham was released.

Now let’s get topical. Roman Polanski raped a 13 year old girl. She was underage, and didn’t consent. There are some people who seem to think that this shouldn’t be a criminal offense, or that he should be pardoned, etc. If those people are here, may I direct you to Kate Harding’s response at Salon.

I was talking with some roommates yesterday about Canada’s age of consent laws. It started when I brought up a family I know with a 16 year old daughter who moved in with a 25 year old boyfriend. I brought it up as an example of why I think the age of consent should be 18 (with near-age exemptions in place). The roommate disagreed. He thought there shouldn’t be an age of consent at all, because as a libertarian, he is against self-harm laws.

I argued that children don’t have the capacity to make certain decisions.

For example, most kids don’t like school, but we can’t let them drop out just because they don’t see the point in staying. We don’t let kids make their own medical decisions. They can’t vote, join the military, or buy cigarettes or alcohol. They don’t have the capacity to consent.

My roommate suggested that perhaps we SHOULD let children drop out of school, make their own medical decisions, vote, and etc., at the guidance of their parents. Currently, parents make medical decisions for their kids, so why shouldn’t parents be in charge of whether or not their kid drinks alcohol and has sex. It shouldn’t be up to the government to decide these things.

I find this to be a poor argument, because how many of you asked your parents for permission and insight the first time you snuck off with friends to drink? It is naive to suggest that parents know what’s going on in their kids lives. Let’s also remember that in the Roman Polinski case, it is pretty clear that the mother knew what was going on. Do we not still owe it to protect the boys and girls who have parents who make these kinds of decisions? I think it is the government’s role to protect the vulnerable, and I think children are vulnerable.

I really think everybody should be able to agree that an age of consent law is necessary. If you truly believe that any person of any age can make their own decisions, then I don’t know what to say to you. But if we’re all on the same page that age of consent laws need to exist, then the discussion comes down to what age the age of consent should be.

Eighteen would be consistent with other laws that have decided a person should legally be treated as an adult at 18. Of course, at 18 there are plenty of people who aren’t mature enough to make good decisions, but I think the “is 18 really an adult?” discussion is a totally new conversation.

This isn’t to say that I think nobody under the age of 18 should be legally allowed to have sex. I like the near-age exemptions in the Canadian law, because it distinguishes between peer-peer sex and adult-child sex. To say that there is no difference whether or not an authority figure is involved is to ignore or not understand social power. Kids are taught to listen to and trust adults, their adult family members, their teachers, their soccer coaches, and that person on the street who offers to buy them a milkshake for no reason.

So I guess to conclude, I think the age of consent should be 18 with near-age exemption limits. I like talking (and blogging) about this sort of thing, because it helps me realize that I have opinions on things I’ve really never thought about! I’m a little bit nervous to be posting this, though, because all my favourite feminist bloggers are very “THIS IS HOW I FEEL: and why you should, too” and this post is more “well, I’ve been thinking about this, and here’s where I’m at right now.” I guess if you’re looking for eloquent argument then maybe this post isn’t it, but the whole roundtable, think-it-out-loud thing is what we’re going for. Please continue the conversation in the comments!

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4 Responses to On the age of consent

I agree with you on the whole “this is where I am in my thought process at this moment” thing. I think the near-age exemptions are hugely important to understanding the role that age plays in determining power in a relationship, especially during emotionally vulnerable teenage years. It gives young women and men space to explore themselves and grow, while still protecting them from asshole predators who would take advantage of their inexperience/youth.

But yeah, the age of consent at 16 thing is a bit weird for me. On the one hand, I think certain age-restricted decisions, like voting, should be open to 16-18 year olds. I think that at that age we become much more aware of ourselves and our capabilities. So I’m not sure about raising the age of consent to 18.

I think we should be emphasizing sex-positive education that stresses the importance of consent and healthy relationships. We need to empower today’s youth, not restrict them, but also have laws in place to protect them when things go badly.

Also: Polanski is a sick, sick man and I would never have watched his movies if I had known about this story. No means NO. Fucker.

As a person who was sexually abused by a man in his thirties, starting at the age of thirteen and continuing until I was seventeen, I can say, unequivocally, that a fourteen year old CAN NOT CONSENT to sex. Let me repeat, for those lawmakers and libertarians who weren’t listening properly, children (because that is what they are) under the age of 18, lack the capacity to consent to sexual activities with adults who are over that age. Yes, I recognize the grey areas of 16 and 18 year-olds getting busy in the backseat, and yes, there should be considerations for that. But those considerations must not muddy the waters of issues of consent between adults (over 18) and children (under 18).
Consider how psychologically advanced and self aware you were when you began college. Now imagine your psychological awareness in the eighth grade. This is not a tricky issue, people. I think this may warrant a post of its own from me.
Oh, and Roman Polanski? It’s a good thing that the US judicial system does not rely on victim preference when deciding whether or not to pursue a case.

I have mixed feelings on this subject – On one hand, I definitely don’t want Canada to become a safe haven for people who want to abuse children. However, at the same time I feel that young women (and men) are often not given as much credit as they deserve when it comes to making decisions about their bodies/lives.

I definitely think that 14 is too young for the age of consent, so I am glad they have raised the age to 16 but I would be a bit apprehensive about raising the age to 18. I personally feel that 16 is old enough for women (and men) to make informed, real decisions about themselves and their bodies and I think that to imply otherwise could open some dangerous doors…

However, this is definitely one of those issues where there is no clear cut right/wrong answer. Especially since the maturity of 16 year olds varies so much from individual to individual.

I think the law that exists in a number of US states is pretty good on this, with some exceptions. Under a certain age (I think usually 12-14) you can’t consent at all. If you’re under 18, you can consent if there is a four year age difference or less between the two people.

I’m not sure about 16 year olds consenting. I think that at that point it’s not so much a moral choice, it’s more arbitrary. 16 year olds can do some things as adults, for example in most US states they can be legally emancipated and live fully as adults, and they can legally drop out of school. I think maybe it would make sense to have a greater age range, say eight years, for 16-18 year olds, or to have an exception for emancipated minors in this range.

I’m also not sure about not having any sort of age range exception for those under 12 or 14. If a 13 year old has sex with an 11 year old, I think the parents should be charged for child neglect. I don’t think the 13 year old should be criminalized. I actually did a paper in law school comparing sexual autonomy laws in England, the Netherlands, and the European Court of Human rights, and while the Netherlands is generally very liberal on sexual autonomy, there’s been an American-style pedophilia freakout in recent years where 15 year olds are being criminally charged for fooling around in the swimming pool with 12 year olds. I do think this is an unnecessary demonization of teenagers and reflects our fucked up attitudes about sexuality.

Finally, and this is probably my most controversial point (and a tangential one at best), I think that while we should care about protecting minors, and should punish sexual abusers, the US laws are too harsh on pedophiles. Yes, they should go to jail, certainly. But the way we make it almost impossible for pedophiles rehabilitate makes them more likely to commit future crimes, sexual or otherwise. In the US, they usually can’t live within a certain number of yards from any school, playground, etc., which means that there is one tiny plot of land where all the pedophiles live, together. It’s pretty depressing stuff, and there have been studies that show that these guys usually end up relapsing into future crimes. I don’t know that this whole isolating thing is really directly related to crime prevention or victim protection at all. After all, this isn’t how we treat any other criminals who are released on parole after robbing a house, assaulting someone, or raping an adult. Seems a little much to me.

Oh, and also, an interesting tidbit. When I was 17, I had a girlfriend, and while we were dating I turned 18. The age of consent law didn’t apply, because we were too close in age, and but Lawrence v. Texas, the case that declared sodomy laws unconstitutional, was still a few months away. So although she could have consented to heterosexual sex, I was both committing the crime of sodomy AND contributing to the delinquency of a minor (also only true because we were gay, since heterosexual sex isn’t a crime). Well, really, I don’t know if we ever did quite enough to be considered sodomy under North Carolina law, but it still makes me laugh.